OPPOSITION No B 2 508 474

B&B Hotels, 271 rue du Général Paulet, 29200 Brest, France (opponent), represented by DLA Piper France LLP, IP & T Department, 27 rue Laffitte, 75009 Paris, France (professional representative)

a g a i n s t

Ecobnb S.r.l., Via Brennero n. 114, 38121 Trento, Italy (applicant), represented by ING. C. Corradini & C. S.r.l., Piazza Luigi di Savoia 24, 20124 Milan, Italy (professional representative).

On 09/12/2016, the Opposition Division takes the following

DECISION:

1.        Opposition No B 2 508 474 is rejected in its entirety.

2.        The opponent bears the costs, fixed at EUR 300.

REASONS:

The opponent filed an opposition against all the services of European Union trade mark application No 13 313 879, namely against all the services in Classes 39 and 43. The opposition is based on European Union trade mark registration No 4 767 323 and international trade mark registration No 1 188 257 designating the European Union. The opponent invoked Article 8(1)(b) and 8(5) EUTMR in relation to European Union trade mark No 4 767 323 and Article 8(1)(b) EUTMR in relation to international trade mark registration No 1 188 257.

PRELIMINARY REMARKS ON THE SUBSTANTIATION OF EARLIER INTERNATIONAL TRADE MARK REGISTRATION No 1 188 257

According to Article 76(1) EUTMR, in proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.

It follows that the Office cannot take into account any alleged rights for which the opponent does not submit appropriate evidence.

According to Rule 19(1) EUTMIR, the Office shall give the opposing party the opportunity to present the facts, evidence and arguments in support of its opposition or to complete any facts, evidence or arguments that have already been submitted together with the notice of opposition, within a time limit specified by the Office.

According to Rule 19(2) EUTMIR, within the period referred to above, the opposing party shall also file proof of the existence, validity and scope of protection of his earlier mark or earlier right, as well as evidence proving his entitlement to file the opposition.

In particular, if the opposition is based on a registered trade mark which is not a European Union trade mark, the opposing party must provide a copy of the relevant registration certificate and, as the case may be, of the latest renewal certificate, showing that the term of protection of the trade mark extends beyond the time limit referred to in paragraph 1 and any extension thereof, or equivalent documents emanating from the administration by which the trade mark was registered – Rule 19(2)(a)(ii) EUTMIR.

In the present case the notice of opposition was not accompanied by any evidence as regards international registration No 1 188 257 designating the European Union on which, inter alia, the opposition is based.

On 22/04/2015 the opponent was given two months, commencing after the end of the cooling-off period, to submit the abovementioned material. This time limit expired on 27/08/2015.

The opponent did not submit any evidence concerning the substantiation of the earlier trade mark mentioned above.

According to Rule 20(1) EUTMIR, if until expiry of the period referred to in Rule 19(1) EUTMIR the opposing party has not proven the existence, validity and scope of protection of his earlier mark or earlier right, as well as his entitlement to file the opposition, the opposition shall be rejected as unfounded.

The opposition must therefore be rejected as unfounded, as far as it is based on this earlier mark.

The Opposition Division will proceed with the examination of the opposition in relation to the opponent’s European Union trade mark No 4 767 323.

LIKELIHOOD OF CONFUSION – ARTICLE 8(1)(b) EUTMR

A likelihood of confusion exists if there is a risk that the public might believe that the goods or services in question, under the assumption that they bear the marks in question, come from the same undertaking or, as the case may be, from economically linked undertakings. Whether a likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, the similarity of the goods and services, the distinctiveness of the earlier mark, the distinctive and dominant elements of the conflicting signs and the relevant public.

1. The services

The services on which the opposition is based are the following:

Class 43: Hotels, restaurants, cafeterias, bars, reservation of hotels and temporary accommodation.

The contested services are the following:

Class 39: Escorting of travellers; travel arrangement; tour reservation services; planning of journeys; travel and passenger transportation; organization of sightseeing tours; sightseeing [tourism]; provision of sightseeing tours [transport]; operating of tours; booking agency services for sightseeing tours; arranging and conducting of tours and sightseeing; conducting of sightseeing tours.

Class 43: Room reservation services; accommodation bureaux [hotels, boarding houses]; accommodation bureau services; hotel reservations; hotel reservations; hotel services; temporary accommodation; temporary accommodation; provision of temporary furnished accommodation; travel agencies for arranging accommodation; booking agency services for holiday accommodation; accommodation letting agency services [time share]; room reservation services; rental of temporary accommodation; room reservation services; rental of temporary accommodation; providing assisted living facilities [temporary accommodation].

Some of the contested services are identical to services on which the opposition is based. For reasons of procedural economy, the Opposition Division will not undertake a full comparison of the services listed above. The examination of the opposition will proceed as if all the contested services were identical to those of the earlier mark.

2. Relevant public — degree of attention

The average consumer of the category of products concerned is deemed to be reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question.

In the present case, the services assumed to be identical are directed primarily at the public at large. The consumer’s degree of attention as regards the services in Classes 39 and 43 may vary from average to high, since they are purchased occasionally, and, notwithstanding whether they are purchased in or outside the holiday season, the price of these services can be a relevant factor.

3. The signs

	ecobnb
Earlier trade mark	Contested sign

The relevant territory is the European Union.

The global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (11/11/1997, C-251/95, Sabèl, EU:C:1997:528, § 23).

The earlier mark is a figurative mark consisting of a circle containing two simple upper case bold white letters ‘B’; these are connected by an olive-green ampersand that is slimmer and smaller than these letters, and a much smaller word ‘HOTELS’ is depicted below these elements in standard upper case olive-green letters. Therefore, the verbal element ‘B&B’ of the earlier mark is considered more dominant (visually eye-catching) than the other elements of this figurative sign.

The contested mark is a word mark and has no elements that could be considered clearly more dominant than other elements.

When assessing the similarity of the signs, an analysis of whether the coinciding components are descriptive, allusive or otherwise weak is carried out to determine the extent to which these coinciding components have a lesser or greater capacity to indicate commercial origin. It may be more difficult to establish whether or not the public will be confused with respect to origin as a result of similarities that pertain solely to non-distinctive elements.

The element ‘B&B’, included in the earlier mark, is commonly used in part of the European Union to indicate ‘bed and breakfast’ hotel services, and therefore, in relation to the relevant services (hotels, restaurants, cafeterias, bars, reservation of hotels and temporary accommodation), it is non-distinctive for the part of the public of the European Union that is familiar with the abbreviation ‘B&B’.

However, for the other part of the public in the European Union, such as the Polish-speaking public, the element ‘B&B’, in the earlier trade mark, has no meaning and is distinctive.

The remaining verbal element of the earlier mark, that is, the basic English word ‘HOTELS’, will have a meaning for all the public in the European Union and, in connection with hotel- and restaurant-related services covered by the earlier mark, will be perceived as non-distinctive for all the services in Class 43.

Therefore, based on the economy of proceedings, the Opposition Division will first examine the opposition in relation to the part of the public in the European Union for which the element ‘B&B’, of the earlier mark, has no meaning and is normally distinctive (e.g. the Polish-speaking public), as the similarities between the signs will be higher.

In the contested sign, the relevant public within the European Union is likely to recognise the element ‘eco’ as a prefix that is the short form of ‘ecological’ or ‘economical’, or both; therefore, it is weak for all of the services of the contested sign.

Therefore, the remaining verbal element, ‘bnb’, in the contested sign can be considered clearly more distinctive than the other element.

Visually, the signs   and ‘ecobnb’ coincide only in the letter ‘B’, which appears twice in both signs; however, the two letters ‘BB’ in the earlier mark are connected by an ampersand and are above the additional word ‘HOTELS’; these differences, together with the stylised font of these letters and the figurative element composed of two concentric circles, mean that the earlier mark is very different from the string of letters ‘ecobnb’.

The signs coincide only in irrelevant aspects, that is, the double letter ‘B’, which is in different positions in the signs and is not very visually perceptible for the average consumer encountering the marks. The two letters ‘BB’ form the most dominant element of the earlier mark, ‘B&B’, which is visually dominant, while, in the contested sign, the letters ‘bb’ are linked with the letter ‘n’ (‘bnb’) and are preceded by the three letters ‘eco’.

Therefore, the signs are not visually similar.

Aurally, part of the relevant public, for example the Polish-speaking public, will pronounce the ampersand in the element ‘B/&/B’ as its equivalent in the relevant language, namely ‘i’ in Polish. The other part of the relevant public will pronounce the ampersand, which is well-known within the European Union because of its frequent use on the market, for example in abbreviations, as ‘and’, with the English pronunciation; therefore, the sound of the three syllables of the earlier mark will be the same as the three syllables ‘b/n/b’ of the contested sign. The signs differ in the sound of the word ‘HOTELS’ in the earlier mark and in the sound of the first syllable, ‘eco’, in the contested sign, which, although of limited or non-distinctive character, cannot be completely disregarded, especially the word ‘eco’, which, because of its location at the beginning of the mark where it will first attract attention, will have more impact on the consumers.

Therefore, taking into account the word ‘HOTELS’ and the element ‘eco’, for the part of the relevant public that will pronounce the ampersand in ‘B&B’ as ‘and’, the signs will be aurally similar to an average degree, while, for the other part of the relevant public, which will pronounce it as its equivalent in the consumers’ mother tongue, the signs are aurally similar to a lower than average degree.

Conceptually, as mentioned above, for the part of the public of the European Union (e.g. the Polish-speaking public) that will not recognise the element ‘B&B’ in the earlier mark as an abbreviation for ‘bed and breakfast’, the only meaningful elements in the earlier mark are the ampersand and the word ‘HOTELS’, while the contested sign will be associated with something ‘ecological’ or ‘economical’. Therefore, the signs are not conceptually similar.

As the signs have been found similar in at least one aspect of the comparison, the examination of likelihood of confusion will proceed.

4. Distinctiveness of the earlier mark

The distinctiveness of the earlier mark is one of the factors to be taken into account in the global assessment of likelihood of confusion.

According to the opponent, the earlier mark has been extensively used and enjoys an enhanced scope of protection. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim does not have to be assessed in the present case (see below in ‘Global assessment’). The examination will proceed on the assumption that the earlier mark has enhanced distinctiveness.

5. Global assessment, other arguments and conclusion

The contested services in Classes 39 and 43 are assumed to be identical to the services in Class 43 covered by the earlier trade mark.

The signs  and ‘ecobnb’ are visually dissimilar and conceptually not similar, and they are considered aurally similar only to the extent that the element ‘B&B’ of the earlier mark and the last three letters, ‘bnb’, of the contested sign will have the same pronunciation for the part of the relevant public that will pronounce the ampersand as ‘and’. For the part of the relevant public that will not pronounce the ampersand according to the English pronunciation, but will pronounce it as its equivalent in their mother tongue, the signs will be aurally less similar. The significant difference in the pronunciation of the initial part of the contested sign ‘ecobnb’, which consists of the element ‘eco’, which is well-recognised on the market, compared with that of the first element of the earlier mark, ‘B&B’, and the non-distinctive element ‘HOTELS’, will be easily noticeable and remembered by the consumers.

The first element, ‘B&B’, of the earlier mark is visually quite different from the first three letters, ‘eco’, of the contested sign, ‘ecobnb’. Moreover, even if the relevant public splits this sign, so that the consumers’ attention would be focused not on the weak element ‘eco’ but on the letters ‘bnb’, these letters are still considered visually very different from the element ‘B&B’, in the earlier mark. The element ‘B&B’ is more dominant in the earlier mark than the element ‘HOTELS’; however, the ampersand in ‘B&B’ would not be associated by the relevant public with the letter ‘n’ in the second part of the contested sign (‘bnb’). It is concluded that the consumers will not tend to further analyse the element ‘bnb’ of the contested sign in a way that would allow them to link the element ‘&’ (‘and’) of the element ‘B&B’ with the letter ‘n’ in the element ‘bnb’.

As mentioned above in section c), the comparison of the signs was focused on the part of the public in the European Union that is more likely to confuse the marks, for example the Polish-speaking part, since, for this part, the element ‘B&B’, in the earlier mark, will not be associated with any meaning and is distinctive. However, for the part of the public in the European Union that is familiar with the abbreviation ‘B&B’, the earlier mark is meaningful because ‘bed and breakfast’, together with the element ‘HOTELS’, conveys a clear concept of bed and breakfast hotel services.

In principle, coincidence in a non-distinctive element will usually not result in likelihood of confusion. The fact that the element ‘B&B’, of the earlier mark, aurally coincides with the contested sign for part of the relevant public does not lead to likelihood of confusion because this coinciding element is not distinctive.

For this reason, the last part of the contested sign ‘ecobnb’, that is, ‘bnb’, can be perceived by part of the relevant public as aurally similar to some extent to ‘B&B’ in the earlier mark; however, it will not be associated with the same meaning by the part of the public that is familiar with the abbreviation ‘B&B’, since they are not visually similar to each other. Furthermore, the contested sign, ‘ecobnb’, will be associated with only ‘ecological’ and/or ‘economical’ services in Class 43.

Therefore, there is no conceptual similarity between the signs for any of the relevant public.

As stated in section b) of this decision, the degree of attention of the relevant public as regards the services in Classes 39 and 43 may vary from average to high. Properly defining the degree of attention of the relevant public is necessary, as this factor can weigh for or against a finding of a likelihood of confusion. Although average consumers rarely have the chance to make a direct comparison between the different signs and must rely on an ‘imperfect recollection’ of them, a high level of attention of the relevant public may lead to conclude that it will not confuse the marks, despite the lack of direct comparison between the trade marks (22/03/2011, T-486/07, CA, EU:T:2011:104, § 95).

Therefore, for the part of public with a high degree of attentiveness, a likelihood of confusion is less likely than for the remaining part of the public, which has an average degree of attention.

Therefore, the Opposition Division concludes that there is no likelihood of confusion between the marks for the public of the European Union and emphasises that, the part of the relevant public for which the element ‘B&B’, of the earlier mark, is non-distinctive, is less likely to confuse the signs than the remaining part of the public of the European Union (e.g. the Polish-speaking public), since, for the part of the public familiar with the abbreviation ‘B&B’, the earlier mark has a clearly different meaning and the element ‘B&B’ is non-distinctive.

Likewise, even assuming that the earlier mark enjoys an enhanced degree of distinctiveness because of extensive use/reputation, as discussed in section d) of this decision, the outcome of no likelihood of confusion remains the same, because the marks coincide aurally to some extent for only part of the public of the European Union, and this is insufficient to find a likelihood of confusion, based on all the previous arguments.

Given that the opposition is not well founded under Article 8(1) EUTMR it is unnecessary to examine the evidence of use filed by the opponent in relation to European Union trade mark No 4 767 323.

Considering all the above, the Opposition Division finds that there is no likelihood of confusion on the relevant public. Therefore, the opposition must be rejected insofar as it is based on the provisions of Article 8(1)(b) EUTMR.

REPUTATION – ARTICLE 8(5) EUTMR

According to Article 8(5) EUTMR, upon opposition by the proprietor of a registered earlier trade mark within the meaning of Article 8(2) EUTMR, the contested trade mark shall not be registered where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier European Union trade mark, the trade mark has a reputation in the Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

Therefore, the grounds of refusal of Article 8(5) EUTMR are only applicable when the following conditions are met.

• The signs must be either identical or similar.

• The opponent’s trade mark must have a reputation. The reputation must also be prior to the filing of the contested trade mark; it must exist in the territory concerned and for the goods and/or services on which the opposition is based.

• Risk of injury: the use of the contested trade mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

The abovementioned requirements are cumulative and, therefore, the absence of any one of them will lead to the rejection of the opposition under Article 8(5) EUTMR (16/12/2010, T-345/08, & T-357/08, Botolist/Botocyl, EU:T:2010:529, § 41). However, the fulfilment of all the abovementioned conditions may not be sufficient. The opposition may still fail if the applicant establishes due cause for the use of the contested trade mark.

In the present case, the applicant did not claim to have due cause for using the contested mark. Therefore, in the absence of any indications to the contrary, it must be assumed that no due cause exists.

1. The signs

The sign has already been compared above under the grounds of Article 8(1)(b) EUTMR. Reference is made to those findings, which are equally valid for Article 8(5) EUTMR.

2. Reputation of the earlier trade mark

According to the opponent, earlier trade mark No 4 767 323 has a reputation in the European Union.

Reputation implies a knowledge threshold which is reached only when the earlier mark is known by a significant part of the relevant public for the goods or services it covers. The relevant public is, depending on the goods or services marketed, either the public at large or a more specialised public. In the present case, regarding the services in Class 43, the recognition of the earlier trade mark should be proved for the public at large.

The evidence must also show that the reputation was acquired prior to the filing date of the contested sign, that is, 30/09/2014, for all the services for which the opponent has claimed reputation, namely services in Class 43 (hotels, restaurants, cafeterias, bars, reservation of hotels and temporary accommodation).

The opponent filed a considerable amount of evidence to prove the reputation of the earlier mark. However, for reasons of procedural economy, the evidence filed by the opponent to prove this claim will continue on the assumption that the earlier mark has a reputation in the territory claimed, that is the European Union, for all the services in Class 43.

3. The ‘link’ between the signs

As seen above, the earlier mark  is assumed to have a reputation in the European Union for all the services in Class 43 and the signs are similar only aurally for part of the public of the European Union. In order to establish the existence of a risk of injury, it is necessary to demonstrate that, given all the relevant factors, the relevant public will establish a link (or association) between the signs. The necessity of such a ‘link’ between the conflicting marks in consumers’ minds is not explicitly mentioned in Article 8(5) EUTMR but has been confirmed in the judgments of 23/10/2003, C-408/01, Adidas, EU:C:2003:582, § 29 and 31, and of 27/11/2008, C-252/07, Intel, EU:C:2008:655, § 66. It is not an additional requirement but merely reflects the need to determine whether the association that the public might establish between the signs is such that either detriment or unfair advantage is likely to occur after all of the factors that are relevant to the particular case have been assessed.

Possible relevant factors for the examination of a ‘link’ include (27/11/2008, C-252/07, Intel, EU:C:2008:655, § 42):

∙        the degree of similarity between the signs;

∙        the nature of the goods and services, including the degree of similarity or dissimilarity between those goods or services, and the relevant public;

∙        the strength of the earlier mark’s reputation;

∙        the degree of the earlier mark’s distinctive character, whether inherent or acquired through use;

∙        the existence of likelihood of confusion on the part of the public.

This list is not exhaustive and other criteria may be relevant depending on the particular circumstances. Moreover, the existence of a ‘link’ may be established on the basis of only some of these criteria.

The establishment of such a link, while triggered by similarity (or identity) between the signs, requires that the relevant sections of the public for each of the goods and services covered by the trade marks in dispute are the same or overlap to some extent.

The earlier mark is assumed to have a reputation in the European Union in relation to the services in Class 43, namely hotels, restaurants, cafeterias, bars, reservation of hotels and temporary accommodation. The contested sign covers the services in Classes 39 and 43; therefore, the relevant services mainly target the same public, that is, the public at large.

Following the Canon criteria (29/09/1998, C-39/97, Canon, EU:C:1998:442), the Opposition Division has already considered in the first part of this decision that, even assuming identity between the opponent’s services in Class 43 and the contested services in Classes 39 and 43, a likelihood of confusion pursuant to Article 8(1)(b) EUTMR was excluded. However, this does not automatically mean that no connection between the signs can arise in the minds of the consumers and the appropriate significance of the other relevant factors should be determined.

The Court established in the judgment of 12/03/2009, C-320/07 P, NASDAQ/NASDAQ, § 43, that the types of injury referred to in Article 8(5) EUTMR, where they occur, are the consequence of a certain degree of similarity between the earlier and the later marks, by virtue of which the relevant public makes a connection between those two marks, that is to say, it establishes a link between them, although it does not confuse them. In the absence of such a link in the mind of the public, the use of the later mark is not likely to take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier mark. According to paragraph 45 of the same judgment, the existence of the link must be subject to an overall assessment taking into account all factors relevant to the circumstances of the case and, in particular, the degree of similarity between the marks at issue, the nature of the goods or services for which the marks at issue are registered, the relevant section of the public, the strength of the earlier mark’s reputation and the degree of the earlier mark’s distinctive character.

In the present case, the signs  and ‘ecobnb’ are not visually or conceptually similar and are considered similar only aurally for the part of the public of the European Union that will pronounce the coinciding elements in the marks, ‘B&B’ and ‘bnb’, according to the English pronunciation. For the remaining part of the relevant public, which will pronounce the ampersand not according to the English pronunciation, but as its equivalent in their mother tongue, the elements ‘B&B’ and ‘bnb’ will be aurally less similar. As described above, the mere fact that the signs are aurally similar for part of the relevant public is insufficient and does not overshadow all the differences in the remaining aspects of the comparison and described under the part of the decision regarding Article 8(1)(b) EUTMR.

The signs coincide only in the two letters ‘B’, which are in the first and most dominant element, ‘B&B’, of the earlier mark and the second part of the contested sign, ‘bnb’. However, even taking into account the weak element of the contested sign, ‘eco’, the public of the European Union is unlikely to split and further analyse the contested sign ‘ecobnb’ sufficiently to note this similarity. Similarly, it is not probable that the relevant public would establish any connection between these elements, since the ampersand in ‘B&B’ and the letter ‘n’ are visually quite different.

Therefore, neither the consumers for whom the ‘B&B’ element is distinctive, nor the consumers who are familiar with the abbreviation ‘B&B’, when encountering the marks  and ‘ecobnb’, will associate these two elements. It is considered that the consumers who are familiar with the abbreviation ‘B&B’ will not make any association with the concept of ‘bed and breakfast HOTELS’ when encountering the contested sign, ‘ecobnb’. The contested sign is visually very different, not only because of the difference in the two verbal elements of the earlier mark, ‘B&B’ and ‘HOTELS’, compared with one word, ‘ecobnb’, but also because of the figurative element, composed of two olive-green and brown concentric circles, which add a degree of stylisation to the earlier mark, and because of the concept of ‘ecological’ and/or ‘economical’ services provided under the contested sign that will be triggered in the consumer’s minds.

Therefore, it is concluded that the relevant public is not likely to establish a link between the conflicting signs. When consideration is given to the hotel services and hotel-related services in question, it is clear that the similarities between the signs relate to elements that are non-distinctive for the part of the relevant public that is familiar with the abbreviation ‘B&B’. This is because this part of the public will immediately perceive the earlier trade mark, ‘B&B HOTELS’, as descriptive of the services in Class 43. Therefore, in view of the feeble distinctive character of the elements in question, the similarities between the contested sign and the earlier trade mark are unlikely to bring the earlier trade mark to the mind of the average consumer. This conclusion is also applicable to the part of the public for which the element ‘B&B’ is of normal distinctiveness and for which the non-distinctiveness of the earlier mark is limited to the element ‘HOTELS’.

Where some of the abovementioned factors are lacking, which is the case, the link between the marks is more remote. Indeed, the mere fact that the marks in question are aurally similar to some extent is not sufficient to conclude that there is a link between the signs. The judgment of whether or not there is a link must be made on the basis of an overall assessment. Although the earlier trade mark, ‘B&B HOTELS’, is assumed to have a reputation for all the services in Class 43, and even assuming this reputation and the aural similarity of the signs for a part of the relevant public, it is not likely that the public would link the signs in question for the reasons described above.

Therefore, taking into account and weighing up all the relevant factors of the present case, the Opposition Division concludes that it is unlikely that the relevant public will make a mental connection between the signs in dispute, that is to say, establish a ‘link’ between them. Therefore, the opposition is not well founded under Article 8(5) EUTMR and must be rejected.

COSTS

According to Article 85(1) EUTMR, the losing party in opposition proceedings must bear the fees and costs incurred by the other party.

Since the opponent is the losing party, it must bear the costs incurred by the applicant in the course of these proceedings.

According to Rule 94(3) and Rule 94(7)(d)(ii) EUTMIR, the costs to be paid to the applicant are the costs of representation which are to be fixed on the basis of the maximum rate set therein.

The Opposition Division

Richard BIANCHI

Eamonn KELLY

Adriana Van ROODEN

According to Article 59 EUTMR, any party adversely affected by this decision has a right to appeal against this decision. According to Article 60 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

The amount determined in the fixation of the costs may only be reviewed by a decision of the Opposition Division on request. According to Rule 94(4) EUTMIR, such a request must be filed within one month from the date of notification of this fixation of costs and shall be deemed to be filed only when the review fee of EUR 100 (Annex I A(33) EUTMR) has been paid.